J-A31028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENNIS HOUSER, ADMINISTRATOR OF 

THE ESTATE OF DEBRA J. BECKER, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

FORD MOTOR COMPANY AND K & H 

FORD, INC.

Appellee No. 709 MDA 2014

Appeal from the Order Entered March 24, 2014

In the Court of Common Pleas of York County

Civil Division at No(s): 2008-SU-006261-01

BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED APRIL 21, 2015

Dennis Houser, administrator of the estate of Debra J. Becker, 

deceased, (“Houser”) appeals from the order entered March 24, 2014 in the 

Court of Common Pleas of York County, granting summary judgment in 

favor of Ford Motor Company and K & H Ford, Inc., (collectively, “Ford”) and 

against Houser, in this products liability action. Houser raises the following 

issues: (1) whether the court erred in granting summary judgment due to a 

lack of medical expert opinion; and (2) in the alternative, whether the court 

erred by not allowing Houser leave to provide an expert report. Based on 

the following, we affirm.

The trial court set forth the facts and procedural history as follows:
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[Houser] commenced the above-captioned action as a 

result of injuries sustained by [Houser]’s sister, now Decedent, 

Debra J. Becker, (hereinafter, “Decedent”) in a motor vehicle 

accident on December 29, 2006 in York County, Pennsylvania. 

Decedent, who was under the influence of alcohol and had 

blood-alcohol level of 0.28, rear-ended a Jeep Cherokee that was 

stopped at a stop sign. At the time of the accident, Decedent 

owned and operated a 1995 Ford Escort GT which was purchased 

from Defendant, K & H Ford, Inc. (hereinafter, “K&H”). 

[Houser] avers that as a result of the accident, the 

vehicle’s driver side airbag improperly deployed, causing 

blunt force trauma to the Decedent and eventually death. 

More specifically, [Houser]’s Complaint alleges that the 

deployment of the airbag in Decedent’s vehicle caused a 

rupture in Decedent’s aortic arch. [Houser] avers the 

Ford Escort was defective in that it lacked an appropriate 

amount of sensors to allow for timely deployment of the 

airbag during a crash.

[Houser] initiated this action by filing a Writ of Summons 

on December 22, 2008. [Houser] reinstated the Writ on 

February 13, 2009 and March 24, 2009. On November 4, 2009, 

[Houser] filed the Complaint. Defendant K&H filed Preliminary 

Objections to [Houser]’s Complaint on November 24, 2009. The 

matter originally came before this Honorable Court in 2010 in 

which the Court sustained Defendant K&H’s Preliminary 

Objections, but did not dismiss the Complaint against Defendant 

K&H. On June 24, 2010, [Houser] filed a Motion for Service 

Pursuant to Special Order of Court on Defendant K&H. That 

Motion was granted on September 7, 2010.

On February 4, 2010, Defendant, Ford Motor Company, 

filed an Answer with Affirmative Defenses. [Houser] filed a 

Reply to New Matter of Defendant, Ford Motor Company, on 

February 12, 2010. On December 27, 2010, Defendant K&H 

filed an Answer with New Matter. [Houser] filed a response on 

January 18, 2011.

On October 1, 2012, Defendant, Ford Motor Company, 

(hereinafter “Ford Motor”) filed a Motion for Summary Judgment 

and Brief in Support thereof. [In the motion, Ford argued 

Houser had not provided any evidence to establish a defect 

existed in the vehicle at the time of the accident which caused or 

contributed to his damages.] Ford Motor filed a Praecipe to List 

Case for One-Judge Disposition on October 1, 2012. [Houser] 
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filed a response and brief in support thereof on October 29, 

2012. On January 1, 2013, this Honorable Court denied 

Defendant Ford Motor’s[] Motion for Summary Judgment. On 

December 2, 2013, Defendant K&H Ford [and Defendant Ford 

Motor] filed a Motion for Summary Judgment and Brief in 

Support thereof.[1] [Ford’s] Motion for Summary Judgment 

raise[d] two issues: whether Decedent is an intended user of 

the motor vehicle and whether Decedent assumed the risk. On 

December 24, 2013, [Houser] filed a Response in Opposition to 

the Motion for Summary Judgment and a Memorandum of Law in 

Support thereof. This case was listed for one-judge disposition 

on January 13, 2014 and assigned to this Honorable Court on 

February 4, 2014.

On February 6, 2014, [Ford] filed a Supplemental Motion 

for Summary Judgment and Brief in Support thereof. 

Defendants’ Supplemental Motion for Summary Judgment 

raise[d] the issue of causation. 

Trial Court Opinion, 3/25/2014, at 2-4 (emphasis added).

In its supplemental motion, Ford alleged the following, in pertinent 

part:

5. In support of his claims ...[, Houser] has identified as a 

liability expert and submitted the report of Ralph L. Hensler, 

Ph.D., who issued an opinion that the driver’s side airbag was 

defective in that it deployed a few milliseconds later than he 

believed was optimal.

...

7. The engineering opinion of R.L. Hensler only addresses what 

that expert believes to have been a defect in the air bag system, 

and does not purport to constitute an expert opinion as to the 

cause of death, or enhanced injuries resulting from such alleged 

defect, since the said witness is not a medical doctor.

____________________________________________

1

 This was technically Ford Motor’s second motion for summary judgment.
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8. The Hensler report merely speculates based on statements in 

the medical records that [Decedent] died because of a ruptured 

aorta caused by the airbag. The Hensler report makes the 

presumption that the medical records “impl[y] aggressive 

contact with the deploying airbag” (page 7); and it states that 

the [D]ecedent died “presumably” due to contact with the air 

bag (page 2). However, the medical records do not make any 

reference to the airbag causing the injury.

9. The speculative opinions of Dr. Hensler are not supported by 

the medical records. The medical records do not attribute 

[Decedent]’s death to an alleged late deployment of an airbag, 

the theory advanced by Dr. Hensler. 

10. [Houser] has not submitted the report of any medical expert 

containing a competent opinion about the cause of [Decedent]’s 

death, and whether her death was causally related to the alleged 

milliseconds of delay in deployment of the airbag. The Hensler 

report does not, for example, opine that a timely deployment of 

the air bag would have led to a different result, nor does it 

compare or analyze the forces to which the [D]ecedent would 

have been subjected in a timely deployment versus an alleged 

untimely deployment and the effect of those varying forces on 

the [D]ecedent.

11. In short, [Houser]’s sole liability expert provides only an 

engineering opinion; he cannot and did not issue a competent 

opinion as to the cause of [Decedent]’s injury and death, and he 

cannot and did not issue a competent opinion that the failure to 

use an alternative design enhanced the [D]ecedent’s injuries.

Ford’s Supplemental Motion for Summary Judgment, 2/6/2014/ at 3-5 

(citations and footnote omitted; italics in original). Ford indicated this case 

falls under the “crashworthiness doctrine,” which is a subset of strict 

products liability law. Id. at 5.2 Ford contended Houser failed to offer the 

____________________________________________

2

 The term “crashworthiness” means “the protection that a motor vehicle 

affords its passengers against personal injury or death as a result of a motor 

(Footnote Continued Next Page)
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requisite testimony on the “causation” element of the crashworthiness test. 

Id. at 6.

On February 27, 2014, Houser filed a Response in Opposition to Ford’s 

Supplemental Motion for Summary Judgment and Brief in Support thereof. 

Oral argument on the December 2, 2013, Motion for Summary Judgment 

and the February 6, 2014, Supplemental Motion for Summary Judgment was 

held on March 13, 2014. On March 25, 2014, the trial court denied the 

motion for summary judgment but granted the supplemental motion for 

summary judgment based on the following:

Given the totality of the circumstances, the Court finds 

that Decedent was both an intended user of the vehicle and was 

using it for its intended use. The Court also finds that 

assumption of the risk defense does not bar [Houser] from 

recovering as [Ford] failed to submit any evidence that 

[Decedent] had subjective knowledge of the defect causing the 

injury and appreciated the danger involved before using the 

product. Lastly, the Court finds [Houser] failed to submit 

evidence establishing the causal connection between the 

defect of Decedent’s airbag and Decedent’s ultimate 

death.

Trial Court Opinion, 3/25/2014, at 10 (emphasis added). Houser filed a 

motion for reconsideration, followed by a notice of appeal on April 23, 2014.3

(Footnote Continued) _______________________

vehicle accident.” Kupetz v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa. 

Super. 1994).

3

 On April 28, 2014, the trial court ordered Houser to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Houser filed a concise statement on May 15, 2014. The trial court issued an 

(Footnote Continued Next Page)
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In Houser’s first issue, he asserts the trial court erred in granting 

summary judgment on Ford’s crashworthiness argument, specifically his lack 

of any medical expert opinion supporting the causation element. Houser’s 

Brief at 8. Houser states Ford fails to cite any authority which requires that 

expert testimony, including medical expert testimony, be used to satisfy the 

crashworthiness test. Id. Nevertheless, he alleges there was ample 

evidentiary support, which will be discussed in detail below, identifying 

Decedent’s cause of death as blunt force trauma. Id. at 9. 

We begin with our well-settled scope and standard of review:

Our scope of review of an order granting summary judgment is 

plenary. [W]e apply the same standard as the trial court, 

reviewing all the evidence of record to determine whether there 

exists a genuine issue of material fact. We view the record in 

the light most favorable to the non-moving party, and all doubts 

as to the existence of a genuine issue of material fact must be 

resolved against the moving party. Only where there is no 

genuine issue as to any material fact and it is clear that the 

moving party is entitled to a judgment as a matter of law will 

summary judgment be entered.

Motions for summary judgment necessarily and directly implicate 

the plaintiff’s proof of the elements of his cause of action. ... 

Thus, a record that supports summary judgment will either (1) 

show the material facts are undisputed or (2) contain insufficient 

evidence of facts to make out a prima facie cause of action or 

defense and, therefore, there is no issue to be submitted to the 

[fact-finder]. Upon appellate review, we are not bound by the 

trial court’s conclusions of law, but may reach our own 

conclusions. The appellate Court may disturb the trial court’s 

order only upon an error of law or an abuse of discretion.

(Footnote Continued) _______________________

opinion pursuant to Pa.R.A.P. 1925(a) on May 19, 2014, referring to its 

March 25, 2014 order and opinion as applicable. The court also denied the 

motion for reconsideration on May 6, 2014.
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Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014), quoting

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585-586 (Pa. Super. 

2013) (citations and quotation marks omitted).

Moreover, with respect to the “crashworthiness” doctrine, we are 

guided by the following:

The Pennsylvania Supreme Court has adopted the strict 

products liability doctrine enunciated in Section 402(a) of the 

Restatement (Second) of Torts. Webb v. Zern, 422 Pa. 424, 

220 A.2d 853 (1966). As such, to submit a Section 402(a) 

products liability case to a jury, it must be shown that “a product 

was sold in a defective condition unreasonably dangerous to the 

user or consumer, and that the defect was the proximate cause 

of the plaintiff's injuries.” Walton v. Avco Corp., 530 Pa. 568, 

576, 610 A.2d 454, 458 (1992). Additionally, courts of this 

Commonwealth have specified that a product is defective when it 

is not fit for the intended use for which it was sold. Azzarello v. 

Black Bros. Co. Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027 

(1978).

The crashworthiness or second collision doctrine is merely 

a subset of a Section 402(a) products liability action and 

routinely arises in the context of a vehicular accident. Kupetz 

v. Deere & Company, Inc., 435 Pa. Super. 16, 644 A.2d 1213, 

1218 (Pa. Super. 1994), appeal denied, 539 Pa. 693, 653 A.2d 

1232 (1994). Historically, a Section 402(a) strict products 

liability action only created liability for injuries proximately 

caused by a defect where the defect also caused the accident. 

Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 685 

F.2d 94, 99 (3rd Cir. 1982). However, the crashworthiness 

doctrine extends the liability of manufacturers and sellers to 

“situations in which the defect did not cause the accident or 

initial impact, but rather increased the severity of the injury over 

that which would have occurred absent the design defect.” 

Kupetz, 644 A.2d at 1218 (citing Mills v. Ford Motor Co., 142 

F.R.D. 271 (M.D. Pa. 1990)). Therefore, in order for a 

manufacturer to avoid liability, it must design and manufacture a 

product that is “reasonably crashworthy”, or alternatively stated, 

the manufacturer must contemplate accidents among the 

intended uses of its product. Kupetz, 644 A.2d at 1218. 
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...

To prevail on a crashworthiness or second collision theory in a 

products liability action under Section 402(a), a plaintiff must 

prove three elements. First, the plaintiff must demonstrate that 

the design of the vehicle was defective and that when the design 

was made, an alternative, safer, practicable design existed. 

Kupetz, 644 A.2d at 1218 (citing Craigie v. General Motors 

Corp., 740 F. Supp. 353 (E.D. Pa. 1990)). Second, the plaintiff 

must show what injuries, if any, the plaintiff would have received 

had the alternative safer design been used. Id. Third, the 

plaintiff must prove what injuries were attributable to the 

defective design. Id.

Colville v. Crown Equip. Corp., 809 A.2d 916, 922-923 (Pa. Super. 2002) 

(footnotes omitted).4

Turning to the present matter, the trial court opined the following:

[Ford] argue[s] that [Houser] has failed to provide an 

expert opinion showing that the alleged design defect in the Ford 

Escort caused [Decedent] to suffer a rupture in her aortic arch. 

Primarily, [Ford’s] argument focuses on the fact that Decedent’s 

medical records do not provide any support to [Houser]’s 

assertion that a defect of the airbag in the vehicle caused the 

alleged injury. The medical records only indicate that Decedent 

suffered blunt force trauma from either impact with the other 

vehicle or an airbag. The medical records do not mention a 

“late-firing” airbag.

[Houser] provided an expert report from R.L. Hensler, 

Ph.D., an engineer. Dr. Hensler, in his report, stated that 

Decedent’s airbag fired later than what he believed to be 

optimal, thereby placing the Decedent within the airbag’s 

____________________________________________

4

 We note that even though Decedent was not involved in a second collision, 

the crashworthiness doctrine is still applicable because Houser is advancing 

a strict products liability claim based on the theory that properly designed 

airbag sensors would have prevented Decedent’s death during the accident. 

See Colville, 809 A.2d at 924 (applied crashworthiness doctrine to a single 

collision incident).
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deployment zone. Dr. Hensler’s opinion is that Decedent’s 

airbag was defective; but, because he is not a medical expert, he 

does not and cannot offer an opinion establishing that the 

airbag’s defect was the proximate cause of [D]ecedent’s death.

As such, [Houser] has failed to submit any evidence which 

would establish that the defect of Decedent’s airbag was the 

source of injury and ultimate death of Decedent. On account of 

this, the Court finds that [Houser] has failed to establish the 

causal link between the alleged defect of a late-firing airbag and 

Decedent’s death.

Trial Court Opinion, 3/25/2014, at 9-10. 

As mentioned above, Houser alleges there is ample evidence to 

support his argument linking Decedent’s cause of death to the allegedly 

defective sensors. Houser’s Brief at 9. He points to the following as 

satisfying the burden that a prima facie cause of action existed:

5

 (1) the 

expert report of expert, Ralph Hensler, Ph.D.; (2) the medical records and 

death certificate; (3) the police incident investigation report; (4) the 

testimony from the responding emergency medical technician (“EMT”), Scott 

Dean; and (5) the crash investigation report completed by Calspan 

Corporation, an entity that performs crash research on behalf of the United 

States Department of Transportation. Id. at 9-12. With respect to the 

treating physicians, the coroner, the investigating officer, and the 

responding EMT, Houser argues “these fact witnesses can provide testimony 

____________________________________________

5

 Although Houser terms his argument as there are no material facts in 

dispute, it is clear from the trial court’s opinion that it focused on whether 

there was sufficient evidence of facts to make out a prima facie case. See

Stein v. Magarity, 102 A.3d at 1013.
J-A31028-14

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as set forth in the medical records, death certificate and police report 

allowing the jury to draw the link between the defective airbag system and 

the [D]ecedent’s injuries.” Id. at 12. Furthermore, he contends:

[T]he cause of death is apparent from the factual evidence in the 

case and both the Court and the jury can make its own 

determination from its experience vis-à-vis motor vehicle 

accidents to determine if the low speed impact between the 

vehicles or the extreme forces involved in the air bag[,] inflation 

and the deployment “in the 150 mph range” as noted in Dr. 

Hensler’s report, were responsible for the rupture of 

[D]ecedent’s aorta.

Id. Houser also states, “Although Dr. Hensler is not a medical expert, his 

qualifications certainly render him more than qualified to offer an opinion 

about the forces involved in an air bag deployment and whether those forces 

would expose a human being to ‘blunt force trauma.’” Id. 

We disagree with Houser’s argument. Our review of the record reveals 

no basis to disturb the court’s ruling that Houser failed to establish the 

causation element of the crashworthiness test. First, the police incident 

investigation report stated, in relevant part: “A Dauphin County Coroner 

advised that [Decedent] had succumbed to internal injuries resulting from 

blunt force trauma, and further advised result as to alcohol content in 

[Decedent]’s system.” Houser’s Response In Opposition to Ford’s Motion for 

Summary Judgment, 2/27/2014, Exhibit A at 6.6 Second, the post-operative 

medical records indicated Decedent’s diagnosis as “[n]ear completed 

____________________________________________

6

 See also id., Exhibit E at 5.
J-A31028-14

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traumatic intrathoracic aortic transection just distal to the left subclavian 

artery” and also as “an aortic transection due to blunt force trauma.” Id., 

Exhibit B at 1; Exhibit C at 1. Third, the death certificate stated that 

Decedent’s cause of death was “aortic arch rupture.” Id., Exhibit D at 1. 

Fourth, the responding EMT, Dean, testified that it was his “impression” that 

“the major internal trauma [that Decedent suffered] was from the vehicle, 

from [Decedent] hitting the steering wheel and from the airbag.” Id., 

Exhibit G at N.T., 10/24/2013, at 46 (Deposition of S. Scott Dean). 

Fifth, the crash investigation report, completed by Calspan, “focused 

on the severity of the crash and the source of injury that contributed to the 

death of a 54-year old female driver[, Decedent,] of a 1995 Ford Escort.” 

Moreover, it stated:

[Decedent’s] Escort struck the back of a stopped 2003 

Jeep Grand Cherokee at a three-leg intersection which resulted 

in minor severity frontal damage to the Escort and the 

deployment of the Escort’s frontal air bag system. The female 

driver was seated in a mid to forward track position and was in 

the path of the expanding air bag. The driver’s air bag expanded 

against her chest which resulted in a complete laceration of the 

aortic arch.

...

The driver was heavily intoxicated with a police reported 

BAC of .289. She was seated in a forward track position and 

unrestrained. It was possible that the driver was slumped 

forward immediately prior to impact. At impact, the first 

generation frontal air bag system deployed. The driver was 

within the path of the deploying driver’s air bag as she 

responded to the frontal crash forces. The expanding air bag 

contacted the chest of the driver which resulted in a complete 

laceration of the aortic arch.
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Id., Exhibit H at 1, 7.

Lastly, with respect to Hensler, he has a Ph.D. in physics. Id., Exhibit 

I at 2. He is a former director for Breed Technologies, a company that 

supplied airbag crash detection sensors to Ford, and he was in charge of 

developing sensor calibration software and new sensor and airbag 

technology from 1989 to 1997. Id. In his report, he made the following 

conclusions with respect to Decedent’s accident:

The Calspan report and the medical records state that Ms. 

Becker died because of a ruptured aorta resulting from blunt 

force trauma which implies aggressive contact with the deploying 

airbag. Given her small stature, [Decedent] is in a category 

of drivers most susceptible to injuries of this type simply 

because they are located in closer proximity to the steering 

wheel than a taller person. If the airbag fires 10 to 20 

milliseconds late, then there is an increasing likelihood that 

[Decedent] would be in the deployment zone at the time of 

deployment. The problem is exacerbated if you consider that 

[Decedent] is a 5% female, so she would be positioned closer to 

the steering wheel prior to deployment because of her seat 

position. Thus[,] the assumed 5 inch movement during the 

crash would mean she would be inside the deployment zone 

even if the airbag deployed on time. The degree of further 

movement into the deployment zone increases rapidly depending 

on the time delay in firing late. Deployment speeds for airbags 

are in the 150 mph range and are the highest when measured 

closer to the steering wheel. When near fully deployed, a well 

designed airbag drops to near zero velocity. Thus short drivers 

are far more susceptible to severe injury or death in cases of late 

deployments because the driver is inside the deployment zone 

when the airbag deploys.

Based on my inspection and documents I have reviewed, I am of 

the opinion that:

1 – The airbags fired late because of the extreme outboard 

location of the point of impact.
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2 – The late deployment resulted in [Decedent] being in the 

deployment zone at the time the driver side airbag deployed 

resulting in her chest being exposed to extreme levels of force 

from the inflation of the airbag and contributing to her death. 

The impact ruptured her aorta. [Decedent] was a short person 

closer to a 5% female in terms of relative size and was seated in 

close proximity to the steering wheel vs. a 50% male which was 

assumed in the sensor calibration process.

3 – The sensor location contributed to the late deployment and 

had they been mounted further apart or if a third sensor had 

been added, the crash could have been detected in a timelier 

manner thus deploying the airbag before [Decedent] entered the 

deployment zone.

4 – Ford did not conduct sufficient low speed extreme offset 

vehicle to vehicle crash testing to see if the firing time response 

was acceptable for the sensor calibration chosen.

5 – The decision by Ford to use two frontal sensors versus a 

greater number of sensors also contributed to the death of 

[Decedent]. Placing sensors outboard of the radiator was 

possible leading to a shorter delay time in firing.... 

6 – The sensor system in this vehicle is a defective design which 

is a substantial contributing factor in the death of [Decedent].

Id. at 7-8.

We conclude Houser has failed to produce sufficient evidence 

establishing a prima facie case that a delay defect in the sensors caused the 

rupture. In regards to the medical records, death certificate, and police 

report, this evidence describes the accident and the cause of death, a 

ruptured aorta caused by blunt force trauma, but does not attribute the 

injury to the deployment of the airbag. With respect to the responding 

EMT’s testimony, while Dean states it was his “impression” that the trauma 

Decedent suffered was the result of Decedent hitting the steering wheel and 
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the airbag, he does not provide any explanation on a link between an 

allegedly defective airbag system and the Decedent’s injuries. 

Lastly, and of most importance, the Caplan and Hensler reports 

provide no medical explanation as to how the late-firing impact of an airbag 

causes an aortic rupture. The reports merely state the airbags expanded 

against Decedent’s chest, which resulted in the laceration of the aorta, but 

do not provide a medical explanation as to how the impact ruptured the 

aorta. Moreover, Hensler is not a medical expert nor did he present any 

medical expert evidence to support his conclusion. He makes assumptions 

that the delay in the deployment of the airbags caused the ruptured aorta7

but does not present any evidence to explain how the trauma occurred. “It 

is well settled that expert testimony is incompetent if it lacks an adequate 

basis in fact,” and that, “[w]hile an expert’s opinion need not be based on an 

absolute certainty, an opinion based on mere possibilities is not competent 

evidence.” Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003). 

Furthermore, Hensler also opines there was a possibility that Decedent 

would have been in the “deployment zone” even if the airbags deployed in a 

timely manner based on her small stature. Therefore, we conclude the 

evidence was insufficient to establish prima facie case that the defective 

____________________________________________

7

 For example, Hensler notes there was “an increasing likelihood” that 

Decedent was in the deployment zone at the time of deployment. Houser’s 

Response In Opposition to Ford’s Motion for Summary Judgment, 

2/27/2014, Exhibit I at 7.
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airbag sensors caused Decedent’s aortic arch rupture, resulting in her 

death. Accordingly, because Houser did not provide any other evidence to 

support his causation argument, we find Hosuer’s first argument fails.

With respect to Houser’s second issue, as an alternative, he contends 

he should be permitted time to retain a medical expert to opine on the 

causation element of the crashworthiness test. See Houser’s Brief at 13. 

He states Ford would not suffer any prejudice because the deadline for 

providing expert reports had not passed when he made the request. Id. 

Moreover, he contends his request “for leave to provide an expert report was 

reasonable and should have been granted particularly where the record 

evidence clearly identified the [D]ecedent’s cause of death, and no evidence 

was proffered by [Ford] through an expert or otherwise disputing same.” 

Id. at 15.

With respect to this claim, we are guided by the following:

Although parties must be given reasonable time to complete 

discovery before a trial court entertains any motion for summary 

judgment, the party seeking discovery is under an obligation to 

seek discovery in a timely fashion. Kerns v. Methodist Hosp.,

393 Pa.Super. 533, 574 A.2d 1068, 1074 (1990). Where ample 

time for discovery has passed, the party seeking discovery (and 

opposing summary judgment) is under an obligation to show 

that the information sought was material to their case and that 

they proceeded with due diligence in their attempt to extend the 

discovery period. Id., 574 A.2d at 1074.

Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1124 (Pa. Super. 

2004). See also Fort Cherry School Dist. v. Gedman, 894 A.2d 135, 140 

(Pa. Super. 2006) (reasoning “[t]he Pennsylvania Rules of Civil Procedure do 
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not give [parties] an unlimited amount of time to conduct discovery”). 

However, this Court has previously stated that the purpose of Rule 1035.2 

“is to eliminate cases prior to trial where a party cannot make out a claim or 

defense after relevant discovery has been completed; the intent is not to 

eliminate meritorious claims prematurely before relevant discovery has been 

completed.” Burger v. Owens Illinois, Inc., 966 A.2d 611, 618 (Pa. 

Super. 2009) (quotation omitted).

A review of the record reveals Ford filed the supplemental motion for 

summary judgment in February of 2014, over four years after Houser 

instituted the suit against Ford in November of 2009.8 Discovery began 

shortly thereafter. On August 30, 2013, the trial court entered a case 

management order, setting the discovery extension deadline for November 

30, 2013, the deadline for Houser’s expert reports to be January 15, 2014, 

and the deadline for Ford’s expert reports to be April 15, 2014. See Case 

Management Order, 8/30/2013, at 1. The court also ordered that motions 

for summary judgment and briefs were to be filed no later than May 20, 

2014, and opposition responses were due 30 days therafter. Id. Houser’s 

discovery request for a medical expert was filed after Ford filed the 

supplemental motion, which was also after the expiration of his own expert 

reports deadline. See Houser’s Response in Opposition to Ford’s 

____________________________________________

8

 We also note Ford filed the initial motion for summary judgment in 

October of 2012. 
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Supplemental Motion for Summary Judgment, 2/27/2014, at unnumbered 

12. Houser had approximately four years to engage in discovery relevant to 

the issue of causation.9 See Wolloch v. Aiken, 815 A.2d 594, 597 (Pa. 

2002) (holding trial court properly entered summary judgment against 

plaintiff where plaintiff did not submit an expert report before close of 

discovery period). Therefore, Houser’s second argument also fails. 

Accordingly, we discern no abuse of discretion and/or error on the part of 

the trial court in granting Ford’s supplemental motion summary judgment in 

this matter.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015

____________________________________________

9

 Moreover, Houser did not allege that he proceeded with due diligence in 

his attempt to extend the discovery period. Reeves, 866 A.2d at 1124.